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Free Speech on the Internet by John B Chapter 24 Free Speech on the Internet by John B. Morris, Jr.* Julie M. Carpenter Jodie L. Kelley KeyCiteL: Cases and other legal materials listed in KeyCite Scope can be researched through West Group’s KeyCite service on WestlawL. Use KeyCite to check citations for form, parallel ref- erences, prior and later history, and comprehensive citator in- formation, including citations to other decisions and secondary materials. § 24:1 Free speech on the Internet § 24:2 —Overview of modern free expression analysis under the First Amendment § 24:3 — —Prior restraints § 24:4 — —Overbreadth, vagueness, and the chilling eect on speech § 24:5 — —Content-neutral ‘‘time, place, and manner’’ regulation of speech § 24:6 — —Public forum doctrine § 24:7 — —Strict scrutiny and content-based restrictions on speech § 24:8 — — —Disfavored categories of speech and varying degrees of scrutiny § 24:9 — —Varying standards for dierent communications media § 24:10 —Application of the First Amendment to the Internet: The Reno v. American Civil Liberties Union decision § 24:11 —Two nonlegal threats to free speech on the Internet: Service provider decisions and technology evolution *John B. Morris, Jr., is the Director of Center for Democracy and Technology’s ‘‘Internet Standards, Technology and Policy Project.’’ Julie M. Carpenter and Jodie L. Kelley are partners in the Washington, D.C. of- ce of Jenner & Block. K West Group, 12/2002 24-1 Internet Law and Practice § 24:12 Limitations on free speech § 24:13 —Defamation § 24:14 — —Overview of defamation law § 24:15 — —The public gure-private gure dichotomy in cyberspace § 24:16 — —Non-media defendants § 24:17 — —Dening ‘‘harm’’ on the Internet—What is the extent of distribution? § 24:18 —Political speech § 24:19 —Commercial speech § 24:20 —Sexually oriented speech § 24:21 — —Obscenity § 24:22 — —Indecent speech and speech that is harmful to minors § 24:23 — — —Obscenity, indecency, harmful to minors, and their particular application to the Internet § 24:24 — — —Mandatory ltering § 24:25 — —Child pornography § 24:26 —Violence § 24:27 — —Depictions of violence § 24:28 — —Threats of violence and incitement of violence § 24:29 Other signicant First Amendment issues on the Internet—The right to speak anonymously § 24:30 —Statutory restrictions on anonymous Internet speech § 24:31 —Tort restrictions on anonymous speech § 24:32 —The standard where the anonymous/pseudonymous speakers are not participants in the litigation § 24:33 —The standard when the anonymous/pseudonymous individuals are direct participants in the litigation § 24:34 —The right to speak privately § 24:35 —Rights of ISPs and network access providers § 24:36 — —open access to service providers’ networks § 24:37 — —Service providers’ right to use information about customers § 24:38 The intractable problem of Internet jurisdiction § 24:39 —The approach of United States courts § 24:40 —Obtaining jurisdiction over a foreign party in a U.S. court § 24:41 —The approach of foreign courts, and a U.S. court’s reaction § 24:42 The global nature of speech on the Internet § 24:43 —Who is liable for illegal content? § 24:44 —What laws regulate content? 24-2 Free Speech on the Internet § 24:1 § 24:45 —Individual country regulations § 24:46 — —Unrestricted access § 24:47 — —Limited access § 24:48 — —Prohibition of public access § 24:49 —ISP codes of conduct § 24:50 —International treaties and conventions § 24:51 — —Trade treaties § 24:52 —What kind of speech is most likely to be regulated? § 24:1 Free speech on the Internet ‘‘Congress shall make no law . abridging the freedom of speech, or of the press . ..’’ First Amendment, United States Constitution Although formally established by Act of Parliament almost 100 years after the First Amendment was drafted, Speakers’ Corner of Hyde Park in London has been viewed as the embodiment of the concept that underlies the First Amend- ment—the idea that a society is better o if it permits robust, unfettered debate about the issues and topics of the day. Over the years, however, the speech and debate occurring in Speakers’ Corner have increasingly been marginalized by the emergence of mass medium, radio, television, and large media conglomerates. The Internet oers an opportunity to reverse that trend, and to create a global Speakers’ Corner at which people around the world can receive information, listen to debate, and express their views. But to ensure that the Internet can facilitate broad discourse and debate, the concepts and principles of the First Amendment must be ap- plied to the new media of the Internet. In the two hundred years of its history prior to the emer- gence of the Internet, the First Amendment underwent sig- nicant evolution and expansion of scope. There is very little from the debates in Congress in 1789 that explains what the words of the First Amendment mean. Scholars have con- cluded that the prevailing view of the Founders was likely the common law view expressed by Blackstone—that freedom of expression ‘‘consists in laying to previous re- straint upon publications, and not in freedom from censure K West Group, 12/2002 24-3 § 24:1 Internet Law and Practice for criminal matter when published.’’1 This approach was echoed in 1907 by Justice Holmes, who wrote that the main purpose of the First Amendment is ‘‘'to prevent all such previous restraints upon publications as had been practiced by other governments,’ and [it does] not prevent the subsequent punishment of such as may be deemed contrary to the public welfare.’’2 Although the First Amendment may have started out pri- marily as a stricture against ‘‘prior restraint,’’ by the time the Internet emerged the First Amendment aorded ar- mative protection to a broad range of speech. Justice Holmes himself started the shift in approach, noting in 1919 that ‘‘[i]t well may be that the prohibition of laws abridging the freedom of speech is not conned to previous restraints . ..’’3 By the mid-1960s, the Supreme Court declared in a key First Amendment case that the issues presented there must be assessed ‘‘against the background of a profound national commitment to the principle that debate on public issues should be uninhibited, robust, and wide-open, and that it may well include vehement, caustic and sometimes unpleas- antly sharp attacks on government and public ocials.’’4 It is against this background of a far-reaching and speech- empowering First Amendment that the federal courts rst began to grapple with the regulation of speech on the Internet. And in the landmark decision Reno v. American Civil Lib- erties Union, the Court made clear that it understood the expression potential of the medium: This dynamic, multifaceted category of communication includes not only traditional print and news services, but also audio, video, and still images, as well as interactive, real time dialogue. Through the use of chat rooms, any person with a phone line can [Section 24:1] 14 W. Blackstone’s Commentaries on the Laws of England 151 (cited in Near v. State of Minnesota ex rel. Olson, 283 U.S. 697, 713–14, 51 S. Ct. 625, 75 L. Ed. 1357, 1 Media L. Rep. 1001 (1931)). See generally L. Levy, Legacy of Suppression: Freedom of Speech and Press in Early American History (1960). 2Patterson v. People of State of Colorado ex rel. Attorney General of State of Colorado, 205 U.S. 454, 462, 27 S. Ct. 556, 51 L. Ed. 879 (1907). 3Schenck v. U.S., 249 U.S. 47, 51, 39 S. Ct. 247, 63 L. Ed. 470 (1919). 4New York Times Co. v. Sullivan, 376 U.S. 254, 270, 84 S. Ct. 710, 11 L. Ed. 2d 686, 1 Media L. Rep. 1527, 95 A.L.R.2d 1412 (1964). 24-4 Free Speech on the Internet § 24:2 become a town crier with a voice that resonates farther than it could from any soapbox. Through the use of Web pages, mail exploders, and newsgroups, the same individual can become a pamphleteer. As the District Court found, ‘‘the content on the Internet is as diverse as human thought.’’5 The following seven sections provide a brief overview of the basic First Amendment principles and tests to be applied to the Internet. This overview does not attempt to trace the often uneven evolution of the legal theories, nor does it try to reconcile established First Amendment concepts that are at times in tension with one another. Its goal, instead, is to try to identify the critical tests and cases that will then in later sections be applied to the myriad of ways in which the First Amendment touches the Internet. § 24:2 —Overview of modern free expression analysis under the First Amendment There is no single, mechanical way to apply the Supreme Court’s First Amendment jurisprudence to any given case— the standards applicable to a particular case turn on a host of interrelated questions such as whether a prior restraint is found, whether a speech restriction is content-based or content-neutral, and whether a public forum is involved. Many of these concepts are overlapping and intersecting. The following sections discuss the key issues and questions that should be considered in assessing any dispute concern- ing free expression under the First Amendment.1 5Reno v. American Civil Liberties Union, 521 U.S. 844, 870, 117 S. Ct. 2329, 138 L. Ed. 2d 874, 25 Media L. Rep. 1833 (1997) (citing 929 F. Supp. 824, 842 (E.D. Pa. 1996)). [Section 24:2] 1This discussion focuses on the speech and press portions of the First Amendment, and does not consider the religion, association, or petition rights under the Amendment. The First Amendment is phrased in terms of ‘‘the freedom of speech, or of the press,’’ but courts have generally held that there is no signicant dierence between the rights of the public and of the press.
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